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Glass_£ 3?j 
Book- 3 77 



[ Extracts from the Congressional Eecord. ] 

SENATOR FROM LOUISIANA. 



SPEECH ^^ 



HON. GEORGE S. BOUTWELI. 

OF MASSACHUSETTS, 

IN THE 

SENATE OF THE UNITED STATES, 

FEBRUART 18, 1873, 

AND 

REMARKS ON THE GIVIL-RiaHTS BILL, 




WASHINGTON: 

GOVERNMENT PRINTING OFFICE, 

1875. 



V 






SPEECH 



HOX. GEOEGE S. BOUTWELL, 



The Senate having nnder consideration the followins i-esohition, reported from 
the Committee on Privileges and Elections by Mr. Mokton on the 8th instant: 

■'Resolved, That P. B. S. Pinch back be admitted a-s a Senator from the State of 
Louisiana for tlie term of sis years, beginning on the 4th of March, 1873 ; " 

And also the following amendment by Mr. Edmunds : 

" Strike out all after the word "resolved " and insert : 

'■ That the Committee on Privileges and Elections be, and it is hereby, instructed 
to report forthwith a bill declaring that no constitutional State government now 
exists in the State of Louisiana, and providing for an election of a governor, lieu- 
tenant-governor, and members of the Ceneral Assembly for the State of Louisiana 
and all other State officers which by the constitution o£ that State are to be elected 
by vote of the people thereof" — 

Mv. BOUT WELL said: 

Mr. President : It may not be out of place for me to allude to the 
eircumstauce that I had not a seat in this Chamber when the jn-o- 
ceediugs connected with the election of 1872 in Louisianii were first 
considered by the Senate. But this circumstance may not be an ex- 
planation and certainly not an excuse for the fact, which maybe rea- 
son for regret by me, that on the morning of the 5th of January I 
was not so furnished with facts and so equipped with faculties, moral 
and intellectual, that I could at once form an opinion satisfactory even 
to myself of the events and of the character of the events that occurred 
in the city of Kew Orleans the preceding day. 

Other Senators were more fortunate ; and other per.sons in the coun- 
try, not having better nor, as far as I know, even different means of 
information, were also more fortunate ; and with singular unanimity 
they at once pronounced the President of the United States an usurper 
and the Lieutenant-General of the Ai'myan "instrument.of his be- 
hests " in the basest usurpation of modern times. 

We know that these opinions expressed in the Senate and expressed 
in the country were simultaneous in time and the same in character; 
but as we cannot assume that these coincidences were the result of 
prearrangement based upon a knowledge of the plans of tbose in New 
Orleans who designed to organize the house of representatives by fraud 
and force, it appears that tliey were the result of an indentity of opinion 
and purpose in the politics and affairs of the country. Therefore 
these proceedings are just reason for serious thought. The facts were 
not then known. Even the party complaining had not been heard in 
full, and tlie party assailed had not been heard at all. Nor is it an 
excuse or defense to now say, as is now said, even were the statement 
true, that the facts are what you believed and assumed them to b6 



Avlien the Prosident and General Sheridan •were arraigned and con- 
demned. Your .statement, if true, mij^ht he evidence of your superior 
cajtacityfor foreseeing, hut it is conchisive proof of your indifference 
to jn-stice and to the principles and rules of proceeding hy which 
alone justice can he .secured. 

If from this inpistice the people of the South shall reap a hitter 
harvest, it would he a fortunate circumstance in their atfairs if they 
could see the chief source of those disasters, which are not traceahle 
directly to their own faults and errors. At least one-half of tlie mis- 
fortunes of the South are due to the misdirected sympatliy and crim- 
inal support given hy the democratic party of the North. Before the 
war, during the war, .since the war, the democratic party, either hy 
its promises or hy its jjolicy, has encouraged the rehellious and nn- 
suhdued spirits of the South. This encouragement has led to new acts 
ofviolence, to new scenes of disorder. Those acts of violence and scenes 
of disorder have compelled the nation to move again and again for the 
protection of its loyal citizens in tiie reconstructed States. Tlie 
power of the democratic party in the North, Avhether actitally acquired 
or only prophesied hy its leaders, has heen the measure of violence 
and injustice to the loyal people of the South: and this violence and 
injustice, reacting upon the loyal people of the North, have checked 
the progress and prevented the actual triumph of the democratic 
party in the nation. This, in a sentence, is the political history of 
the country for fifteen years. 

And this, if I may address myself specially to the South, this, Sen- 
ators, will he the political history of the country until you cease to 
look to the democratic party for relief, and tiu-n to those principles of 
justice whose essence in politics is Iniman equality, and apply those 
principles universally in the States that you represent. Be not de- 
ceived hy any temporary success of your northern allies. They are 
to-day for the purpose of relieving you in the manner that you seek 
to he relieved as powerless as they were in 18t51, 1864, 1866, 1868, and 
1872. You seek to he relieved from the authority conferred ttpon the 
United States hy the thirteenth, fourteenth, and fifteenth amendments 
to the Constitution. This relief you can never ohtain. The nation 
has heen clotluid with power to protect its citizens, citizens of the 
United States, in their ecpuil rights a.s citizens of the several States. 

These equal rights you do not secure in your several States to the 
citizens thereof, and under cover of the seductive theory of local 
self-government you deny to tlie nation the power to protect tho.se 
wlio are first citizens of the United States, and then and therefore 
citizens of the States where they reside. 

Your relief must come from yourselves. A\Tien you accept the 
negro as your equal politically the contest will he over. Until you 
do so accept him the contest will continue. ]\Iake your choice. 

Time will show that tliese days given to misrepresentation and in- 
justice are fraught with disa]ii)ointmeut to you who speak for the 
remnant of the old order of tilings in the South, hut tliey are full of 
hope for those wlio seek tlie complete enfranchisement of the negro 
race. 

The j)eople might have helieved that General Sheridan or the 
President had erred in measTiriug tlie limits of executive or military 
authority; hut lliey will ncNcr I'nr a moment accejit the suggestion 
that either of them has usur])ed power, or engaged in any nndertak- 
ing hostile to the Constitution of the country. 

Senators on the otlier side of tlie Cliamher may excel General 
Sheridan and the President as interpreters of the Constitution, hut 



none of tliem have done as much for its defense. It is fortunate that 
the judgment of partisan contemporaries is not always, nor indeed 
often, the judgment of history. We have had many great personages 
in American political history, and none of them were exempt from 
assaults ; but those assaults, when unjust, as usually they were unjust, 
have never darkened the character nor dimmed the record of the 
nation's benefactors. The language of eulogy is not wisely applied 
to the living, but what was said of Washington and Jetfersou and 
what they in truth were and are, and what was said of Jackson and 
Lincoln and what they in truth were and are, should at least moderate 
our opinions and temper the expression of them concerning men who 
are to take rank in history with the most illustrious characters that 
America has produced. 

The Senator from Ohio, [Mr. Thurman,] who was indeed the most 
fortunate of Senators in his knowledge of the events of the 4th of 
January at New Orleans, and in his ability to mete to the actors each 
his just share of responsibility, early the 5th of January introduced 
a resolution calling upon the President for information. The speech 
which he made at the.momeut and the more elaborate speech which 
he afterwards pronounced in the debate showed that he did not seek 
information for himself, as his opinions were already formed. The 
same, I think, could Avith truth be said of his associates and support- 
ers who took part in the debate of the first week. Nor was there 
anxiety manifested that the information should be given without de- 
lay. The resolution was peremptory, as though the President were 
oiir servant or agent. The Senator from New York [Mr. Coxklixg] 
projiosed to recognize the constitutional discretion of the President 
by inserting tlie words usually employed by the Senate. 

The Senator from Ohio admitted, I think, although not in words so 
explicit as he often commands, that the form was not essential — that 
the President could reply or refuse, as his judgment mij>ht dictate. 

And this unquestionably is the truth. The Constitution has given 
to the President i)ower iu his discretion to make communications to 
Congress upon public affairs from time to time, but no avtthority is 
given to either Hott,seto call upon him, and much less is there author- 
ity in the. Constitution, or derived from usage, by which the Senate 
can make a peremptory demand upon the President for information. 
Therefore the form of the resolution did not coiiceru the President at 
all. His power and his duty were the same in one case as in the 
otJier. But the form did concern the Senate. It concerned the 
country ; it concerned the projier ordering of the public business ; 
and, above all, it concerned the constitutional relations and rights of 
co-ordinate branches of the Government. 

The resolution as offered, an amendment having been proposed and 
a controversial discussion haviug arisen thereon, became in fact a 
proposition to subordinate the executive to the legislative branch of 
tlie GoA-ernment, and in so far it was an assault upon the Constitti- 
tion itself. It is safe to say that there was not an hour during the 
four days of debate when the majority of the Senate would not have 
passed the resolution if the mover had accepted the amendment. 

Btit by the force of the discussion the amendment ceased to be one 
of form merely, and its adoption became a necessity as defining the 
line between the rights of the Senate and the constitutional powers 
of the President. 

Thus for a week, in the absence of the facts, the debate went on. 
Thus for a week, without haviug the facts before us, the President and 
the Lieutenant-Geueral of the Army, whose names are as certainly 



6 

historical as any in our annals, were not only denonncefl liut con- 
ilemned by the leaders of the opposition in this Clianibcr. Tims, and 
without evidence, were disrinj^nished, patriotic, and successful olH- 
cers of the Army of the Union iield up to the execration of the country. 
In the other House a bill to abolish the oftice of Lienteiiant-General 
was introduced for the purpose of striking the name of General Slier- 
idan in disgrace from the rolls of the Army. The country, and espe- 
cially the veteran soldiers of the Army of the Union, will notice these 
.attempts|tt)strike down a hero whose courage and conduct contributed 
always and largely to the success of our cause. Passion is of the 
moment; the spirit and the principles of justice are immortal. These 
days of injustice and the passions of these days are passing away. 
The country will accept the statements of General Sheridan and the 
message of the President, and hold them otticially and personally in 
higher estimation than ever before. 

In times of public peril men in authority must meet and check the 
peril by every constitutional means. There is, there can be, no higher 
public duty, and, the neglect of this duty in times of public danger 
is the chieiest of x>olitical crimes. Rememl)er how humiliating, how 
ignominious the course of affairs, how terrible the results, when 
Buchanan sat in the exccutixe chair, and without resistance per- 
mitted the disuAembennent of the Union and the overthrow of the 
Constitution which he had sworn to su])port. These days are only 
less serious and threatening than were those; and Avere such a man 
as Buchanan President, or were the President dispost^d to leave the 
South to the control of the white race, the Government would be 
overthrown before the close of the present term. Whenever the Ad- 
ministration at Washington shall be in sympathy with the unsubdued 
and rebellious element of the South, that element being in extent 
and ]iower what it now is, the Government of the country will be 
easily destroyed. 

That the nation is now in great peril I cannot doubt ; but if the 
peril were less serious there might be less hope of our final escape. 
If the country shall realize this peril, the peril itself will tlieu be 
averted. But evils and dangers are not averted by closing our eyes 
to them, and the tendency, the unmistakable ten^lency of public 
opinion and of public affairs, is to place the administration of the 
Government in the hands of those who are fresh fi-om the contest for 
its destruction. This attem]>t to blacken the character of the Presi- 
dent and to destroy the power and drive from othce the Lieutenaut- 
General of the Array are movements in harmony with the plans of 
those who seek the ruin of the Government. Thus it appears that 
the events at Xew Orleans are an important cha]iter in the history of 
the rebellion. Thus are the events at New Orleans connected with the 
rebellion, and thus do they foreshow the danger to which the country 
is exposf^d. 

In ISGtJ or 18G7 General George H. Thomas testified that there was 
a secret organization extending over the Avhole South whose purpose 
was the dissolution of the Union or the destruction of the Govern- 
ment, while the forms of union were allowed to exist. Although he 
then connuanded the Departuu'nt of the Tennessee, and although his 
means of informaticui were su]terior to those of any other ]terson, the 
statement seemed so improbable that no heed was given to it even by 
the committee before which the statement Avas made. 

Of the truth of those statements there is now no doubt. General 
Thomas was a southern man, but his devotion to his ccmntry knew im 
limits, and he gave himself to her defense without reserve. He pos- 



7 

sessed the three great qualities of courage, patriotism, and integrity, 
and it is in Yain to inquire in which he most excelled. As his state- 
ments were supported by additional evidence from time to time, the 
leaders of the South and theii' allies in the North strenuously asserted 
that the whole was a fabrication ; but when the existence of the 
organization could no longer be denied, its innocent character was 
asserted as universally and with the same assumed confidence. 

An extraordinary and not agreeable side of human character is 
exposed by the testimony of men of intiuence in the South who were 
members of a secret organization, whose purposes, as they declared, 
were entirely innocent. 

At length in 1872 the true character of the organization, its pur- 
poses, its crimes, were disclosed to the country. Some of its leaders 
in murderous undertakings and many of its dupes were arrested and 
punished ; but its leaders iu council, they who were most guilty, 
escaj)ed. 

In truth the White League of 187.5 is, in the knowledge we possess 
of its character, iu the assertions of innocence made by its members 
and defenders, in no important particular dilt'erent from the Ku-Klux 
organization of 1871 ; and I anticipate that its career, history, and 
the exposure of its crimes will render the evidence of its identity com- 
plete and conclusive. 

Coiitidence cannot be placed in the statements of those who pass 
for honorable men : hence they Avho seek the truth are quite likely 
to be deceived, and hence the country will wisely wait for a full dis- 
closure of the character of the White League before accepting as final 
the opinion of a committee that has trusted, manifestly, to a super- 
ficial exam.ination of the subject. 

Men upon the ground, who are members of the organization, will 
not expose its character, whether it be innocent or crimiiuil ; those 
who are not members of the organization have no trustworthy knowl- 
edge, and usually they dare not give voice to their suspicions. 

The testimony taken by the committee on the Ku-Klux organiza^ 
tion'in 1671 illustrates the point I am now considering, and I refer 
for our instruction to the examination of J. B. Gordon, of Georgia, 
made in July of that year, recorded in the first volume of the testi- 
mony taken upon* the existence and character of the Ku-Klux order 
in Georgia, pages 321, 322 and 323. 

After a lengthy examination this simple question was put to the 
witness : 

Q. "Was there a chief of the whole order in the State? 

A. TVtU, sii-. such a thing was talked about : I do not know that the organiza- 
tion vcas evsr jierfected. Such a thiug was talked about for the purpose of keeping 
down any general movement on the part of the negroes ; but I do not think it waa 
found necessary. We had no lodges, councils, nor anytliing of that sort. 

This answer seems explicit, but the record shows that after two 
hitndred and eighty-eight questions had been pitt and answered, all 
relating to the nature of the organization, the committee return to 
the charge in this manner: 

Q. "VThat office did you hold in it, if any? 

A. I did not hold any office. I was spjjken to in regard to holding an office, but 
I never held any. The organization never was ])ei-fected, as I have ab-eady stated. 

Q. In regard to holding what office were you spoken to ? 

A. I do not know that it is necessary to answer tliat question unless you insist 
upon it. 

Q. I insist upon an answer. 

A. I was spoken to as the chief of the State. I said very emphatically that tipnn 
that litie I could be called on if it was necessary. But the organization never was 
perfected, and I never heard anything more about it after that time. 



In presence of tliis record wlio can say that in the search for truth 
upon this suljject the talk of tlie town, the casnal or even formal state- 
ments of citizens to committees, the testimony of travelers, the letters 
of correspondents, whether for a private eye or the jmblic ear, are, one 
or all, of any value whatever ? The time will come when members of 
the White League through fear of exposure and punishment, or moved 
hy an uneasy (■ouscicnce, will make the secrets of the order public. 
What we now know is that the order exists in Louisiana, and we know 
of no other order in Louisiana ca]ial>le of doius; what has lieen done by 
organized force in that State and iu the neighboring State of Mis- 
sissipi>i. 

When the friends of peace, order, and justice complain that mur- 
ders arc frequent in Lonisiana they are met by the counter assertion 
that murdei-s occur elsewliere, in Indiana and Massachusetts. This 
we are compelled to admit ; and immediately those who deny the 
existence of the White League, or assert its innocence, or excuse and 
defend its proceedings, assume that they have gained their cause — 
that equality in crime in some sense absolves the criminals. 

Murder is the greatest of crimes, and as a legal ottense it is always 
the same ; but as an otlense against society, against the State, it has 
maiiy degrees of tur))itndc. 

Murders which are the result of the fiers" passions directed against 
a real or supposed offender are not usually repeated even if the 
murderers go nn|)nnished. Society is shocked, the example is perni- 
cious, but the cause or the oecasiou of the crime has disappeared with 
its commission. In other countries, and perhaps occasionally in this, 
desperate men have combined for purposes of rol)1)ery and plunder, 
and acce]ited mnrfler as a means to the end. Such men Justly have 
1>een calhjd banditti. But the sjthere in Avhich banditti operate is a 
limited one. Their victims are drawn from a small class of society, 
and from a class, the wealthy, which always and everywhere has the 
largest influence in the State, and fr(uu its resources is better able 
than other classes to i)rovide f(U' its own defense. 

The banditti of Italy would be shocked by a truthful narrative of 
the crimes of the Ku-Klux in America; but in Italy there are none 
to excuse or defend the crimes of the banditti. I speak now of the 
Kn-Klux, because its organization and character are fully known ; but 
I do n'lt doubt that the (uganization discovered by General Thomas iu 
l^W' and 1867 and the White League of 1874 and 1875 are identical 
with it. A 

If the Ku-Klux had not existed in the South, if it had not included 
numy leading men of the South, if it had not nuxde murder an engine 
iu iiolitics, if it had not overawed the well-disposed white people of 
tlu' South, if it had not oppressed the poor, if it had not roljbed, 
maltreated, maimed, and cojumitted murder without specific personal 
hate l»ut in obedience to a law of its organization, it would be cruel 
injustice to suggest or imagine the existence of such an order at this 
tim(!. 

But the order of the Ku-Klux having been shown to exist in 1>7'2 
it remains for ns to inquire whether it now exists under another 
name. Present facts are therefore to be considered. 

The cause or the occasion which gave rise to the organization re- 
mains. Theic are still loyal ]ieo]iIe in the South, most of them 
lu-groes and freedmeu, acting politically with tin- rei)ublican party of 
the country. The visitations of the Ku-Klux were conlined to them, 
they were the only sutlerers, ami therefore the inference is natural 
•tluit tlieir extermination as a political power was the object of the 



9 

•order. lu Tennessee, North Carolina, and Georgia that object baa 
been attained. In Soutli Carolina the niidertaking may for tiie mo- 
ment be considei'ed hopeless. In Alabama, Mississipiii, Arkansas, and 
Loiiisiana the negroes are a political power even now; and it is wise 
to consider whether the successes of the Ku-Klux in North Carolina, 
Tennessee, and Georgia have strengthened or impaired the purposes of 
the men by whom those successes were achieved. 

Secondly. The number of murders committed in Louisiana shows 
that they were the act of an oi'gaiiization, inasmuch as it isimpossiljle 
to conceive of a society moving by the force of its own impulses, how- 
-ever criminal, in which the daily homicides without authority of 
law, using the mild language and gentle rhetoric of the Senator from 
Ohio, [IMr. Titukman,] average one to a million of people. Indeed, 
such a fact, if in the end sustained by proof, would be more discourag- 
ing than the existence and power of the Ku-K!us as made known to 
us. This organization at most includes only a small minority of the 
white people. The majority are for the time inditt'erent or overawed, 
but they are not positively criminal. If, however, these murders are 
the result of unregulated passions developed in individuals without 
concert, and perpetrated without punishment or the fear of punish- 
ment, then indeed we are forced to the conclusion that society in 
Louisiana is wholly criminal. This conclusion I reject, this conclu- 
sion the country must reject, and the alternative of the existence of a 
criminal political organization alone remains. 

Thirdly. The events in Louisiana on the l4th of September and the 
4th of January concur in support of the position I have taken. What 
otherwise meant the iiurchase of arms in great numbers previous to 
the 14th of September? What otherwise meant the robbery of the 
l>ublic arsenal? What otherwise meant the presence of twenty-tive 
]uen in the hall of the house of representatives at the hour of meet- 
ing each with a badge as assistant sergeant-at-arms hidden beneath 
his over-garments ? Thus independently of direct proof is the exist- 
ence of the order shown and its purposes sufficiently indicated. 

Murders of passion att'ect the peace, the well-ordering of society ; 
but they do not touch the source of its life. Combinations for robljery 
and plun<ler with the design to commit murder as an incident or as 
a means are more dangerous to the public peace, and the criminals are 
justly considered the enemies of the human race ; but even they do not 
attempt through their criminal acts the destruction of the State itself. 
It is the essence of a rejmblican government that the citizens shall 
have entu'e freedom of thought and action in political affairs. The 
least restraint upon the humlilest citizen as upon the highest is an 
offense to the body-politic. What, then, shall be said of an order, and 
how shall it be characterized, that by intimidation, maiming, stealthy 
murder, and open assassination seeks to obtain power for a class : of 
an order that seeks through these means to change the character of 
the govfmueut by corrupting it at its source ? Thus with them the 
chiefest of p 'rsoual and social crimes are also the chiefest of political 
crimes. 

As murder for the destruction of the state is a higher, a grosser 
crime than mui'der which is the result of personal passion ; and as 
organizations which propose murder as a means of changing, over- 
throwing, or corrupting the government at its source are fouler than 
those which contemplate nnirder as a possible means of robbery and 
plunder, so the deeds which have been committed in the South by 
the Ku-Klux and kindred organizations must ever be dimounced m 
the basest and most dangerous of the crimes recorded in the annals 



10 

of mankind. Nor is there any excuse in the siijsge.stion or statement 
that tlie memhors of this organization uiiike jio war upon the Gov- 
ernment of the United States. They make war upon citizens of the 
United Stntes and they make war upon the States which are integral 
parts of the-United States. 

They know thepower of the States, and we, too, know the power of 
the States. These same men organized t)ie rebellion of 18(51 through 
the existence and power of the rebel States; and one of our chief 
means of sui)pre8sing the rebellion was found in the existence and 
power of the loyal States. 

Do we iieed further instruction upon this point ? Is not the con- 
certed attempt of the rebel leaders to plnce every Southern State in 
rebel hands a warning to the people of the North? Their policy is 
plain, their course is clear. First, either by fraud or violence, tliey 
secure ccmtrol of those States in the South which, if left to themselves, 
would be republican ; and Then within the Niitioual Government thej' 
use its power for their own purposes, or failing iu that they again at- 
tempt its overthrow. 

Within the Government they can effectually undermine and ulti- 
mately destroy it. A government without credit is contemptible in 
peace and wholly powerless iu war. At the commencement of the 
rebellion our debt did not exceed a hundred million dollars, Init we 
are now embai'vassed by a debt of two thousand millions. An admin- 
istration in the hands of the South could easily augment this debt 
to twenty -five hujidred or three thousand million dollars in four 
years. Meager sources of revenue, negligence and profligacy in its col- 
lection, extravagance of expenditure, the return of the cotton tax, 
and the payment of cotton claims and war claims would work out the 
problem within a single i>residential term. To every country avast 
pul)lic debt is a public calamity to be tolerated and endured only as 
pestilence and famine are tolerated and endured ; but to us our vast 
public debt is now a public national danger. The great error of our 
politics, both as regards the continuance of power iu the hands of the 
republican party and the preservation of the Government itself, was 
the reduction of our revemu^s. 

But this unlawful conspiracy in the South, now apparently directed 
ag«iust negroes and the much-abused class of northern men known as 
carpet-baggers, is in truth a cous])iracy against the Government of the 
United States; and it is not too umch to say that it has in its hamls 
the means of accomplishing its object unless the North again otters 
the united resistance it f)itered during the war. The democratic 
])arty, which challenges the judgment of tlie country for support, is 
in its organization a tyrant. It never respects individiuil oi)iuion ; it 
never recognizes imli vidnal will. It is indilfercut to personal wrongs ; 
it questions, it disputes, it denies the authority of the General Gov- 
ernment, but it adnuts, adorns, dignities, ci'owns local rule. This is 
the ethical, the political basis on which the conspiracy in the South 
rests, and resting on this basis it has the power to destroy the National 
Government. Can you otter to the enemies of the negro, to the ene- 
mies of the National Government, to the friends of secession a more 
acceptable basis iu politics than this ? And this is what the democratic 
party otters. 

The events in Louisiana, as they are connected with and relate to 
the general conspiracy, are imi»ortant to the country ; indeed they aie 
important to so uuniy of the human race as are struggling in other 
lands for e(]uality of lights; but we are unnecessarily distnrl>cd if 
the question is only whether Kellogg is rightfully and lawfully gov- 



11 

emor of that State, or ^Thetller five men by an error as to tlie scope 
of military antliority were unlawfully removed from the hall of 
its house of representatives. These are grave questions, but they do 
}iot touch the vital interests of the coitutTv. Hoffman was two years 
governor of Xew York through a fraud upou the ballot-box, and yet the 
event, though a reproach to our institutions, did not disturb the busi- 
ness or check the growth of the country or in any large sense affect 
the personal or political rights of the people. The military power 
has sometimes exceeded its authority, but not on this occasion, and 
the act of the military at New Orleans, ho waver judged, has iu it no 
quality of danger to the Kepublic. Are these minor events magnified 
that the serious dangers to which the country is exposed may be 
kept from sight ? If, however, I deal with these events in detail,! so 
deal with tliem iu deference to a i)ublic opinion which is due to a 
temporary excitement and destined soon to give place to a healthier 
tone, and to a desire as strong as any of which my nature is capable 
to contribute stmiething to a thorough union of sentiment and action 
in the Xorth, on which alone the well-being, the safety of the country 
depends. 

The fourth section of the fourth article of the Constitution of the 
United States was designed to secure to every State a repnbli(;an 
form of government, to protect it against invasion, and upon ap- 
plication of the executive, when the Legislature cannot be convened, 
against domestic violence. 

Tiie duty and power of the United States to secure to each State a 
republican form of government and to i>rotect it against invasion do 
not depend upou thfe action of the people of the State orits authorities. 
The duty is imposed upon the Government of the United States ; the 
power is there, the discretion is there ; but the duty and the i^ower 
of the United States to protect a State against domestic violence de- 
pend for exercise upon the authorities of the State. It is to be ob- 
served that it is the executive that is named as the authority that may 
call upon the United States for aid against domestic \iolence when 
the Legislature caimot be convened. 

Usually the executive is the governor whose right to the office is 
not disputed ; but the Con.stitution has so carefully provided for the 
peace of the States that a call from the executive, 'whether governor 
or otherofficer, whether acting under an authority recognized by every- 
body or disputed by everybody, is, without inquiVy as to the legality of 
his title, to be heard and obeyed by the President'. Were it otherwise 
the chief means of promoting and continuing domestic violence in a 
State would be found in the denial of the right of the executive to 
his office. Were it otherwise the President would be compelled to 
inquire for himself into the title of the executive, and this independ- 
ently it might be of legislative, executive, and judicial proceedings 
within the State ; this inquiry to be made, it might be, while the 
State was given over to domestic violence, its coustituted authorities 
fugitives, and the evidences of their titles in the hands of their ene- 
mies. Therefore it follows that whenever a call is made upon the 
President for the aid of the United States to suppress domestic vio- 
lence in a given State and the President is satisfied that the person 
making the call is iu the possession of the executive office and iu the 
exercise of the functions of the executive office in that State, he 
must obey the call for aid without further inquiry. 

William Pitt Kellogg was in possession of the executive office of 
Louisiana and in the exercise of. the functions of that office in Sep- 
tember last, and he had been so in office and so exercising the func- 



12 

tions tliereof from January, 1873, and therefore, ■without inquiry as to 
his le<;al rij>ht to such office, the President -svas bound to obey liis call 
for aid to suppress domestic violence in that State. Thus it ai>))ear8 
that the military force of the United States was lawfully in Louisiana 
the 14th of September last for the suppression of domestic violence ; 
and so being there they were entitled to the legal and constitutional 
support of the civil authorities and to the moral support of the iieo- 
ple of the United States. 

• The troops being lawfully in Louisiana for a lawful purpose, how 
long could they lawfully continue there? Clearly until one of three 
events should occiu". Until the executive of the State should signify 
to the President that the troops might be withdrawn, or until thV, 
President upon his own judgment should withdraw the forces, or until 
the Legislature of the State should have convened and a reasonable 
time been allowed for legislative action upon the subject. Neitlier of 
these events had occurred on the 4th of January last, and therefore 
the troops were lawfully in Louisiana and in Louisiana for a lawful 
purpose on the day when the acts complained of were committed. 

But this part of my argument does not rest alone upon the formula 
which I have presented, although this formula is a sufficient legal 
basis for all that w^as afterwards done. 

There does not api)ear to have been a moment of time when the 
spirit of domestic violence did not exist in Louisiana, and indeed 
the danger of outbreak appears to have been constant and imminent. 
"While I omit all specific reference to the reports of Major Men-ill and 
other otficcrs in command in the interior of the State, I refer to the dis- 
l)atches of Major-General Emory, commanding the Department of the 
Gulf. The 1st of October, he informs the President that he is unable 
to recover the arms that had been stolen from the arsenal, and that 
Admiral MuUany informs him that he will leave two slii])s at New 
Orleans for the preservation of peace in the city. His dispatch of 
the 5th of the same month states that bodies of armed men, fi'om 
twenty to sixty in each body, meet in the street at night for the 
purpose of drill, and that armed bodies of men, whose numbers are 
not known, meet in the league-rooms. 

In his dispatch of the 7th of October he says that he thinks the 
white-leaguers would like to be assailed, and that they have at 
least six thousand well-instructed men, accustomed to arms ; and on 
the 21st of October he says that he shall bring the troops from Jack- 
son barracks to keep the peace and prevent possible conllict between 
armed bodies. 

In his dispatch of the 16th of December he informs the President 
that disturbance is imi)ending and may happen at any time. 

These facts not only show that a necessity existed for retaining the 
troops in Louisiana, but they also show the character and power of 
the conspiracy in that State. 

But the troops being lawfully in the State, and their legal right to 
renuiin there having l)Cfn estaltlished,! next inipiirc wlm had author- 
ity to designate the objects and subjects of nulitary action or surveil- 
lance ? The President was not there, and it is not in the nature of 
his office that he should have been there ; and therefore in a consti- 
tutional sense he cannot be made personally or officially responsible 
for the military operations except so far as he may have given defi- 
nite orders to the officers in command. The President not only had 
not given specific orders, but lie did not even know that any occasion 
for action would arise. TJicri'tore, whether the acts of the military 
on the 4th of January were lawful or unlawful, ihey Avere acts for 



13 

wliich tlie Presideut Avas not responsible either in his personal or his 
official character. "What he had done and all he had done was iu 
strict conformity to la^v. And now and thus, upon the facts and by 
the force of reason and of law, all the accusations made against the 
President fail ; and as a consequence all the denunciation heaped 
upon him is shown to have been the voice of personal and party hate. 

Within the limits of a State the executive is the chief magistrate, 
and upon him more than upon any other magistrate rests the duty of 
keeping the peace ; and this is especially true iu times of domestic 
violence. The officer iu command of the United States forces, under 
the circumstances existing iu Louisiana, might, upon his own motion, 
suppress acts of violence taking place before his eyes ; but usually 
he would wait for the authority and direction of the executive of the 
State, and this authority must be a sufficient justification for the 
commander, unless without inquiry the case was clearly such as to 
leave no reasonable doubt that intervention would be a misapy)li- 
cation of military power. Hence it follows that the authority of 
Kellogg is a sufficient legal ju.stii: cation to General De Trobriand for 
the removal of the five men from the hall of the house of reijresenta- 
tives. 

My argument thus far has proceeded upon the proposition that Kel- 
logg was in possession of the executive office of the State of Louisi- 
ana and exercising the functions of that office ; and it follows that 
the United States were bound to protect the people against domestic 
violence, whether his title to the office was recognized by everybody 
or disputed by everybody. 

Whoever admits that the military forces of the United States were 
lawfully sent to Louisiana iu September last upon the call of Kellogg 
must accept as legal conclusions therefrom all that occurred in that 
State which is the subject of our present inquiry, includiug the re- 
moval of the five men from the hall of the house of representatives, 
and excluding only the appearance of General De Trobriand in that 
hall upon the request of Mr. Wiltz. There was no house of repre- 
sentatives, and of course no speaker; but if there had been a legally- 
organized house and Mr. Wiltz had been its speaker, he would have 
had no riglit to call upon the military force of the United States for 
any service or duty. 

The United States under the Constitution can know only the exec- 
utive of a State ; and in a case of domestic violence iu a legally-organ- 
ized house of representatives neither the house nor the speaker could 
obtain the aid of United States troops except through the agency of 
some person exercising the functions of a magistrate, and more prop- 
erly through the agency of the person exercising the functions of chief 
magistrate. General De Trobriand may be justified by the fact that 
upon his own motion he suppressed domestic violence of which he 
then had itorsoual knowledge, bitt the request of Mr. Wiltz furnishes 
no justification whatsoever. 

The provisions in our State constitutions and in the national Con- 
stitution for frequent elections were designed to secure the country 
against revolutions of force. In every government questions arise 
touching the title of rulers to the places they occupy ; in America 
these questions are not more frequent than iu other countries, but iu 
America we have a constitutional mode of deciding them. 

Should the right of the person in possession of the office of governor 
of Ohio be drawn into controversy and should the supreme court of 
the State decide that he was entitled to his office, Congress and the 
cottntry would accept the opinion as final and conclusive, even though 



14 

the decision rested upon a technicality, and even though the facts of 
public fame were such as to justify the Itelief that he did not receive 
a majority of the votes of the people. This is the demand, the neces- 
sity of constitutional {government. Every question of which the law 
can take notice and does take notice must be settled. The court is 
the tribunal, the court of final jurisdiction is the ultimate tribunal. 
. If an afipeal can be made to arms, if conspiracies can be formed for 
the purpose of overruling the decisions of the courts or thwarting 
their judgments, and especially if those conspiracies can tind influen- 
tial defenders, then the Government ceases to be a government of 
laws and becomes a government of men. But with us so checked 
and guarded are all the powers of government that even a corrupt 
or incompetent court can be brought to justice. Corru])t judges 
can be brought to the bar of the legislative department and there 
deprived of their places if found guilty of malfeasance or misfea- 
sance in office. Do you saiy that these proceedings are too slow, the 
remedy too uncertain, the punishment too remote ? Mj' auswer is 
that deliberation is the highest attribute of justice; and therefore 
delay grows with the gravity of the cause. Thirty yeai-s ago the 
public mind was as mucli concerned in the aftairs of Rhode Island 
as it is now in the affairs of Louisiana, although the occasion for such 
concern was then much less than it now is. 

Finally in the case of Rhode Island the voice of the court was 
heard and the clamor ceased. 

If you ask me whether William Pitt Kellogg was duly elected gov- 
ernorof Louisianaby a majority of the votesof the people who votedfor 
governor of that State in 1872, 1 auswer that I do not know. Perhaps 
no one knows. 

All the proceedings may have been voidable or even void for fraud 
and uncertainty. iJoes it follow therefore that Louisiana has no 
legal governor because neither you nor I can say whetln-r any person 
was duly elected by a majority of the votesof the people ? A person 
legally in an office holds that office not only de facto but dejxre, even 
though an analysis of all the proceedings might show a wide de])ar- 
ture from the/or»(.s' required by law, or even an absence of the suhniaucs 
required by law. Upon a collateral question the right of Kellogg was 
considered by the supreme court of Louisiana. The majority of the 
committee of the Senate, in referring to the case The State ex rel. P. 
H. Morgan rs. J. H. Kinnard, say : 

The utmost tlint can be claimed for this de(-ision is that the court recognizes 
the Ki^Iogg government as a govern luont de facto. 

De facto is a term used to denote a thing actually existing or done ; 
and inasmuch as it was then of pul)lic fame that Kellogg was in the 
office of govex-nor, it needed no court to tell the people so much or so lit- 
tle as that he was de facto governor. If they said that and nothing 
more, then what they said was of no value whatever. It is a maxim 
that that is certain which can be made certain. The same court, in tiie 
case of State ex rel. Attorney-General vs. Wharton et ah., (Louisiana 
Reports, volume 2b, page 14,) did tind that of the two coniesting re- 
turning boards one was a valid, tiiat is, a legal board, and the other 
was not ; and it is not only proved, but it is of public knowledge, that 
the board m) declared to be legal did make return that William Pitt 
Kellogg was (dected govei-nor of Louisiana at the election held in 
November, 1872. 'rtierefcu'e the coiu't ditl liud that Kellogg was the 
lawful governor of Louisiana. 

As these fads cannot be denied, we are met by the allegation that 
the acts of the returning board were fraudulent. If this were so 



15 

there shoiilcT be a legal remedy whicli those who consider themselves 
aggrieved are boiiud to pursue ; but if there be uo legal remedy, 6t if 
its piu'suit be ineliectual, shall the disappointed resort to conspiracy 
and revolution, and shall conspiracy and revolution for such cause 
find defenders ? These questions have a larger public interest than 
the question of Kellogg's right to the office he holds. A larger public 
interest because upon this pretext people in Louisiana have formed 
conspiracies and hatched rebellion, and such cousjiiracies and rebell- 
ion have been excused, palliated, and del'ended by the democratic 
party of the country. 

It is the old controversy between a government of laws and a gov- 
ernment of men. We have chosen a government of laws; the con- 
spirators and their allies deman«l a government of men, whenever the 
administration of the law does not promote the purposes they seek. 
Nothing is better understood than that the administration of the law, 
even by able and pure magistrates, does not always meet the denumds 
of justice and equity, and we know, too, that the administration of 
the law is not always in the hands of such magistrates. But we have 
chosen, and wiselj' chosen, a government of laws. 

The experience of mankind shows that the evils of a government 
of laws, as far as these evils are the result of administration, steadily 
and visibly diminish ; and the experience of mankind also shovtsthat 
the evils of a government of men rapidly and fatally increase. 

I now ask the indulgence of the Senate while I recall the events 
of the 4th of January in New Orleans. The statutes of Louisiana pro- 
vide for a returning board, to whose custody, examination, and decision 
the votes given for members of the house of representatives should 
be submitted. Such a board, legal in its oi-gauization and character, 
assembled in New Orleans for the purpose of examining and i)assing 
upon the returns of votes for members of the house of representatives 
cast at the election held in November, 1874. That board acted. By 
its report one hundred and six persons were elected, and five seats 
were left vacant for the reason, as stated, that the board could not 
decide whether the claimants were entitled or not. 

The names of the jjersons so returned as members were furnished 
to the secretary of state, and a list thereof was by him furnished to 
the clerk of the preceding house of representatives as requu'ed by 
the statutes, of which the following is a copy : 

The statute that regulates this subject is the twenty-fourth section of the act of 
Kovember iO, 1372, wliicli declares in these words — 

That it shall be the duty of the secretary of state to transmit to the clerk of the 
house of representatiA'es and the secretary of the senate of the last General As- 
sembly a list of the names of such persons" as, according to the returns, shall have 
been elected to either branch of the General Assembly ; and it shall be the duty of 
said clerk and secretary to place the names of the I'epresentatives and senators 
elect, so furnished, upon the roll of the house and of the senate respectivelv ; and 
those representatives and senators whose names are so placed by the clerk and secre- 
tary respectively, in accordance with the foi'egoiug ]>rovision, and none other, shall 
be comjietent to organize the house of representatives or senate. 

Xotliing in this act shall be construed to conflict with article 34 of the constitu- 
tion. 

Article 34 of the constitution gave the usual authority to each 
house to judge of the election, qmili iication, and return of its members. 

In presence of these facts and of this statute it is clear, if any- 
thing in logic or law be clear, that the one hundred and six persons 
returned by the returning board, whose nameS were borne on the 
roll made by the secretary of state and tiansmitted to the clerk of 
tlie last house of representatives, and none other, were competent 
to organize the house of representatives. 



16 

It is, however, maintained that five other persons who were not re- 
turned by the hoard, and wliose names were not on the list, were eu- 
titk^d to act, and ux)on two groimds : 

Fii-st, That they were improperly and fraudulently rejected by the 
returning board. 

Secondly, That the law of Louisiana for the organization of the 
house was invalid, and that the members-elect might organize in dis- 
regard of its provisions. 

The first defense set up is a confession that the attempt of Wiltz 
and his friends to organize the house was a revolutionary proceed- 
ing, justified on the part of it^ defenders by the allegation that the 
returning boai'd had failed to peVform its duty. This defense needs 
no further discussion ; at most, it is hut another fact in the long cat- 
alogue of crimes in Louisiana, tending to show that it is the policy 
of the enemies of equal rights to use the forms of government 
■whenever they can be made subservient to their purposes, and to 
trample them in the dust whenever they become an obstacle in the 
way of tiie execution of their revolutionary undertakings. 

The second ground of defense is equally desperate in its character. 

What is a law ? The expression of the will of the people through 
a constitutional cliannel and takingeftect upon a subject within the con- 
stitutional d(uuain of the law-making power. Who are the members- 
elect of a Legislative Assembly ? They are only citizens having a right 
to enter upon the performance of certain duties. They are subject 
to the laws like other citizens ; and the fact that when they are act- 
ual merubers of a legislative body they will possess certain powers 
does not absolve them from the authority of the law while they are 
ou the way to membership. The law of Louisiana prescribing the 
mode of organizing the house of representatives did not in any way 
affect the iiowers of a house when organized. The constitutional 
power of the house to judge of the election, qualifications, and returns 
of its members, of which so nuich has been said in this debate, did 
not commence until the organization was legally accomplished. There 
could be no conflict, as there could not be a moment of time when 
both the law and the constitutional provisions were operative. The 
power of the statute was exhau.sted the' moment the house was com- 
petent to take notice of the constitutional provisi<ui. 

More than thirty years ago the State of ilassachusetts legislated 
ujion the subject, and under the lead of a distinguished and recognized 
authority. I refer to Mr. Gushing, the author of the great work ou 
parliamentary law. 

In thi' year 1843 the Massachusetts house of representatives was so 
equally divided that several days were passed in the etfort to ele(?t a 
speaker. The circumstances of the trial caused much solicitude to 
thoughtful men of both parties, and in the year 1844 Mr. Cushiug 
proisosed a special committee to consider whether any legislation to 
provide for the organization of the house of re})resentatives was 
necessary and practicable. It was my fortitne to be upou the com- 
mittee, of Avliicli Mr. Gushing was chairman. A bill was reported and 
passed which provided that th<* secretary of state should make a list 
of persons having certificates of election and furnish the sanu> to the 
sergeant-at-anns of the last house of rei)resentatiyes. It was made 
the duty of the sergtant-at-arms to admit those ijersons and those 
jiersous only to the hull of the house whose names were upon the list. 
Further, it was made the duty of the eldest senior member whose name 
was borne upon the loU to call the house to order and to preside until 
a speaker should be chosen. The constitution of Massachusetts made 



17 

no provision for snch legislation, and it resteil upon tlae inherent right 
of the people, through tlie legislative body, to direct the manner in 
■which each succeeding house of representatives should be organized. 
The statute of 1844 remains in force, and I have not heard that any 
parliamentary, statute, or constitutional lawyer has called its validity 
in question. It ditfers in no essential respect from the statute of 
Louisiana ; and as an exercise of power it differs not at all ; nor do I 
hesitate to say that the statute of Louisiana would never have been 
challenged had it not been necessary to justify the revolutionary pro- 
ceedings of the 4th of January. 

Assuming that the validity of the laws of Louisiana is beyond any 
honorable controvei\sy, it follows that the five men whose names were 
not iipon the clerk's roll had no right to be in the hall, and that no 
one but the clerk had a right to preside at the election of speaker. 
In defiance of law the five men were there ; in defiance of law an- 
other than the clerk did assume the place of jiresiding officer ; in defi- 
ance of law another than the clerk did declare that Mr. Wiltz was 
chosen speaker ; in defiance of law Mr. Wiltz assumed to be speaker ; 
and thus in tine all the proceedings, from first to last, were in defiance 
of law. It is not pertinent to the question, nor does it furnish the 
slightest aid to those who defend these revolutionary proceedings, to 
say that the returning board had not decided that the five meu 
were not elected. The returning board had not decided that they 
were elected, and only those who were declared elected by the return- 
ing board were entitled to admission to the hall. 

Nor does it furnish aid to the defenders of these proceedings to 
say that the five men were afterwards declared members by the body 
over which Wiltz assumed to preside. That body was not a house 
of representatives ; and therefore it was not competent to pass upon 
any question. It had no legal character, although it had a character 
known to the laws. It was a mob, the fruit of a conspiracy consist- 
ing of fifty-two persons legally elected to the house of representa- 
tives, and five persons claiming to have been elected, but wholly 
without evidence to entitle them to take part in the organization. 
Being a mob it had no rights ; but being a mob, a great public right, 
the right to have tbe mob dispersed, was invoked, and for the time 
this right was paramount to all others. It had no characteras a leg- 
islative body, it had no rights as a legislative body, and it could not 
demand protection as a legislative body. This unlawful assemblage 
presented itself to the magistrates in two aspects : First, as a disturb- 
ance of the public peace, such as might occur at a theater or circus, and 
therefore to be suppressed by any magistrate authorized to summon 
the jjosse comltatus, of which the military could lawfully form a jjart.. 
Secondly, it presented itself as a body of men engaged in domestic 
violence. It clearly appears that those men were engaged in the 
attempt to organize the house of representatives by force and in vio- 
lation of law. This is a mild presentation of the case. It was, in 
short, an attempt to seize the government of the State. Does such 
an act meet the demand made by the phrase " domestic violence," as 
used in the Constitution? Can it be doubted that an attempt to 
seize the government of a State, whether made by two men or two 
thousand men, is the most dangerous form of domestic violence ? 

The troops being lawfully in the State, and for the protection of 
the State against domestic violence, it was the duty of the officer in 
command not only to have removed the five men, but to have re- 
moved all others who had conspired with them in their unlawful 
purposes. 

2 B 



18 

Thus is it seen that the acts of the military forces were lawful, 
whether these men be regarded as ordinary disturbers of the public 
peace, or as conspirators, as they really were, engaged in an act of 
domestic violence, against whicjh the United States was bound to 
protect the State of Louisiana. 

This, ^Ir. President, is a brief and a very imperfect statement of 
the legal aspect, or what seems to me the legal aspect of affairs in 
Louisiana. I have dealt Avith these affairs to the extent that I have 
for the purpose of making some observations on the general charac- 
ter of those events, and to suggest what I think should be the policy 
of the country in reference to them. While I shall vote as I have 
opportunity to recognize the legal authority of Mr. Kellogg as gov- 
ernor of Louisiana, I know perfectly well that no recognition by this 
body, by Congress, by the President, by all combined, will have an 
imi)ortant effect upon the condition of affairs in the South. If Mr. 
Pinchback shall be adndtted to a seat here, it will have no consider- 
able influence upon the great c^uestion which we are forced to con- 
sider. 

I should be glad for one to accept as conclusive the condition of 
things in the South as presented this morning by the senior Senator 
from North Carolina, [Mr. Ransom;] but it was my fortune to sit in 
the peace congress in 1861, fourteen years ago this month, and I there 
listened to speech after speech made by honest and I believe patri- 
otic men from the border slave States, of which the speech made by 
the Senator from North Carolina to-day is only a reproduction. They 
were nuide by patriotic men, men devoted to the Union, and against 
civil war; but on the 1st day of March they left the hall of assembly 
in this city and in less than thirty days they were enveloped in the 
fires of civil war. I know very well that there are patriotic men on 
this floor who do not believe in the existence of any conspiracy or 
any purpose in the South hostile to this Government ; but if I chose 
to analyze, as I might analyze, the si)eech made by the Senator from 
North Carolina this morning, we should observe elements of danger 
which, if not removed from the minds of the people of the South, will 
end in civil war. He said in reference to the negroes : 

"We have the kindest feeliugs toward them, and we treat them with Christian 
mercy. 

That is all very well. He gives expression to the doctrines of hu- 
manity, of civilization, of Christianity. But there is a political ques- 
tion which the people of this country also consider important. If 
the Senator could make this Senate and this country believe that 
what he said was the sentiment of the people of the South, then 
there would be reason for hope. If he had gone fiirtlier and said, 
" we treat these people justly, we recognize their poIiti< al e(iuality, 
they are men ;" if he had not asserted the dominance of the white 
race, as though it were a divine right in the white race to rule races 
of a different color, then there would be some reason to believe that 
the troubles which we are considering wt're at an end; but so long 
as the sjiirit of political superituity reinaiiis among the white jjcople 
of the Soulli, su long will these evils and dangers continue to disturb 
the countrv- 

I was no't one of those who in 186.'), 186r>, 1S67, and 1868, when the 
measures of reconstruction were considered and adopted, believed 
that peace, continuous, unilisturbed peace, would follow. I knew 
that neither civil war nor the kindness and generosity with which 
those who had been engaged in civil war were received by the North 
could change the chaiacterof eight millions of people. I knew that 



19 

the rising generation would carry witli tliem the ideas, the princi- 
ples, and to a certain extent the purposes whicli they had inherited 
from their ancestors. If I could have dictated a policy, it would have 
been as liberal a policy in administration toward the South, but it 
would have been a more reluctant policy as to the restoration of the 
rebel States to the Union. As evidence of it, I may say that I was 
one of twelve men only in the House of Representatives who voted 
against the admission of Tennessee in July, 1866. I then believed 
that the time had not come when with safety any of those States 
could be restored to power in the Union. But they are in the Union, 
and the question before us is a grave one : What is to be done ? 

I listened in the early part of this debate to the Senator from Mis- 
souri, [Mr. SciiURZ.] It is not often in his speeches that he gives us 
specific advice ou questions of policy. On that occasion he did 
proffer one bit of advice as a remedy for the existing condition of 
things. He proposed that one-half of the colored people of the South 
should join the democratic party and vote the democratic ticket. 
That was a specific, clear bit of advice ; but, for one, I cannot indorse 
it. Would the Senator have advised his countrymen, citizens of the 
United States, in 1854 and 185.5, when the know-nothing excitement 
was at its height and the members of the order were taking possessiou 
of State after State with the design of wielding power in the legisla- 
tion of this nation against all citizens of foreign birth — would he have 
advised German citizens in this country to have joined, one-half of 
them, the know-nothing party ? When we were fighting the battles 
of the Union from 1861 to 1865, would he have dared as an American 
citizen, as a soldier in the cause of the Union, to have advised that one- 
half of the soldiers of the Republic should join the forces of the rebell- 
ion? If in the first case he liad given such advice he would have 
been a traitor to the cause of liberty in two countries — his own and 
this. If in the second case he had given that advice, he would have 
been a traitor to the cause of liberty and of constitutional right in 
this country ; and such advice given now to the negro population of 
the South is treachery not only to the negro race but to the rights of 
man. 

It is the fortune of every progressive party, and especially of every 
organization that seeks to advance the interests of the human race, 
to find men from time to time abandoning the cause. Every such 
movement is in itself revolutionary. It attempts to overturn the 
existing order of things and to provide something better. Therefore 
there are men who fall by the way ; there are men who abandon party 
organizations in the belief, no doubt, (they always make the asser- 
tion, and no doubt in the belief,) that the party is not good enough 
for them. But I have observed, and with pain, during a third of a 
century, that every man, whether high or low, who has abandoned 
the cause of human rights has fallen under the power of the people. 
A third of a century ago Mr. Webster was at the height of his fame. 
His mental powers were undiminislied. He stood among Americans 
the first, the illustrious model ou which his own great sentence was 
formed : "A superior and commanding human intellect, a truly great 
man, when Heaven vouchsafes, so rare a gift is not a temporary flame 
burning brightly for a while and then giving place to returning dark- 
ness. It is rather a spark of fervent heat, as well as radiant light, 
with power toenkindlethecommonmass of hnmanmind, sothatwheu 
it glimmers in its own decay and finally goes out in death, no night 
follows, but it leaves the world all light, all ou fire, from the potent 
contact of its own spirit." 



20 

The luau who wrote those great words was himself the r.:')^t illus- 
trious exani|)le that America has furnislied that there was n hvlng of 
earth to whom tliose words could with justice be api)lied. In eight- 
een days it will he a quarter of a century since that man spoke in 
the Senate Chamber under peculiar circumstances. He had stood for 
thirty years the defender of two great American ideas. In 1820 on 
Plymouth Rock he had anathematized slavery as it had never been 
before on this continent anathematized. Twelve years later he had 
defended the Constitution and the Union in a speech which luis no 
])arallel; but there came a day, the 7th of March, 1850, when the 
Avays parted, when it seemed no longer i)()ssil)le to defend lilierty in 
its l)roadest sense and to defend the Union and the Constitution. This 
is his defense. The ways parted, and it seemed no longer possible to 
stand for liberty and for the Union. He made his choice — a fatal 
choice — but he had to him then presented the gravest personal and 
political question that could be presented to a public man. He had, 
■with his associates, struggled for thirty years to nuiintain the Consti- 
tution and tlie liberty of the people under it. In the rock and tu- 
mult of those times he felt that concessions must be made ; he yielded 
and fell. Liberty did not fall ; the people of the country recovered 
from the shock. They closed their ranks as w'hen one dies and like 
a drop in the ocean disappears. The people were true to liberty, and 
they declared that the Constitution and liberty should stand together. 
Other men in this contest, in my o])iuion less important men, have 
had the courage, in the presence of such an example and such a fate, 
to abandon justice as the foundation on which liuman liberty and 
liuman rights can rest. They, too, have fallen— fallen justly. The 
law and the fate are the same now. They will be the same hereafter. 
There are four million people on this continent whom we have 
l)rought out of slavery. We are bound to them by many cords. For 
fine I hope to be preserved from the thought of ever deserting them. 
I say nothing personal to myself, nothing of my party. I have 
fought as well as I was able to do in the minority. I can do that 
again. If the people of this country in 187li, or at any other time, 
shall falter in their devotion to human rights, to the rights of Ameri- 
can citizens, to the establishment of liberty in America, of liberty as 
liberty, and not liberty for white people only, I hope to remain tirm. 
If the country is not true in 1870 or in 1880,'it still will return to its 
duty; and I say to the men of the South, in all kindness, in all sin- 
cerity, the way to peace is the path of justice — political justice, po- 
litical equality, the recognition of the black man as your equal ]>olit- 
ically, and then you should accept the consequences in good faith. 

With power for the time in the hands of the friends of the negro, 
I am for the constant assertion of that power within the limits of the 
Constitution ; and hrst and now, such legislation by the authority of 
the Constitution, including the thirteenth, foiirteeiith, and fifteenth 
amendments, as will give to every citizen his rights, not as a citizen 
of a State merely, but as a citizen of the Tiuited States. 

The fourteenth amendment to the Coiistitution reads thus: 

All persons born or naturalized in the United States, and subject to the jniisdic- 
tiou thereof, are citizens of the United States and of the State wherein they reside. 

" Citizens of the United States and of the State wherein they reside." 
First citizens of the United States, and then citizens of the State 
wherein they reside. Now mark what follows : 

Is'o St.ite shiill make or euforce anv law whirh shall abridge the privileges or 
immunities of citizens of the United States. 



21 

'riu'se words were chosen with care. Tlie Senator from New York 
[Mr. CoNKLiNG] remembers with what care the committee of tifteen, 
of which he was a member, selected those words. What is the first 
inmmuity of a citizen of the United States? The first immnnity is 
that he is a citizen of the State where he resides, and therefore the 
Government of the United States is clothed with the power of deal- 
ing with its own citizens, to enter, by its law and by the power of its 
law, into every State, and secure to every citizen there his rights as a 
citizen of that State. If that be not so, then this constitutional 
amendment is a failure. 

Mr. EDMUNDS. A fraud. 

Mr. BOUTWELL. I would not have said it was "a fraud." The 
Senator from Vermont says it was a fraud if it be not as I construe 
it. The Supreme Court of the United States in the Slaughter-house 
case appears to have taken a different view, and what do you say of 
the Supreme Court if it has taken a different view ? I respect the 
courts, the decisions of courts, mandates of courts ; but I am con- 
fident that the law as laid down by the Supreme Court will not 
stand the test of time and scrutiny. That decision is contrary to 
English precedents from the act of settlement in 1668 to this time. 
I cannot believe thaj anywhere else there is a tribunal administering 
English law that would recognize a monopoly for business purposes 
covering eleven hundred square miles of territory and maintain it as 
a police regnlatiou. I cannot but believe that iu future times there 
will be a court which will say that it is the duty of the Government 
of the United States to protect its own citizens in the several States 
in all their rights as citizens of such States. 

The power of protection under this amendment is sufiScient for 
such legislation as may be necessary to secure the black people 
and the white people of the South iu all their rights ; but we are to 
bear iu mind, sir, that the mere existence of a constitutional provis- 
ion is of no considerable value to the citizens unless it is enforced 
by law, and unless the law is enforced by magistrates who are willing 
that the law shall be executed. 

But I come, sir, to consider, not because I am sure that there is a case 
to-day which justifies the application of the power that I invoke, but 
because I apprehend that the time may be near when we shall be com- 
pelled to consider the fourth section of the fourth article iu reference 
to the power and the duty of the United States to guarantee to every 
State a republican form of government. I am of course familiar with 
the argument or the statement that that means only that the United 
States shall guarantee to each State a paper constitiition which is 
republican in form, which does not provide for a hereditary monarchy 
or an order of nobility, and that there is no authority to inquire into 
the processes by which the government is organized and the powers 
by which it is kept in motion. If so, then that provision of the Con- 
stitution is a nullity ; but I believe tliat it means that we are to in- 
quire into the established method of expression or practice iu the 
States under the forms of government which they have. 

Mr. EDMUNDS. And you are right. 

Mr. BOUTWELL. I am glad now that for the first time in my life 
I have reached a conclusion upon a legal point that correspond s with 
that of the Senator from Vermont, [Mr. Edmunds,] but I should sub- 
mit to him if it were otherwise even now. 

The csiablished method of expression of the jmpnlar will in a State, if 
that be the reading of the i)lirase "republican form of government," 
then the United States has the power to do what is necessary to be 



done in all these cases where there is any occasion for the applicatiofi 
of the power. 

The mere fact that somehody gets an office in a State, whether it 
he Mr. Hoffman in New York or Mr. Kellogg in Loui^^ia^a, hy fraud- 
ulent practices, does not furnish a case for awakening the sleeping 
power of the Constitution ; but when we find that tlirough a period 
of years and as a general fact in reference to the affairs of that State 
fraud, corruption, and misconduct taint the proceedings generally or 
wholly, thus defeating the right of the people to enjoy the benefits of 
a republican foi'm of government, the time has come when the United 
States under this guarantee clause will find it its duty to disestablish 
a State and establish some form of goTernmeut which .shall secure to 
the people their rights. 

Is Louisiana in this condition to-day ? 

I announce the doctrine now and here, because I have foreseen 
that if this work of disintegration, fomented by conspiracy and re- 
bellion in the South, goes on, the time will come when the Govern- 
ment of the United States will be compelled to choose between the 
duty of protecting its citizens under this provision of the Constitu- 
tion and accepting the fact that there are States in this Union 
whose citizens cannot be protected by the power of the United 
States. • 

I have said, sir, that I was not of those who expected that the dif- 
ficulties in the States of the South would be healed by their restora- 
tion to the Union. Therefore I am not disappointed in the fact that 
there is disorder, confusion, fraud, domestic violence, in the South ; 
and I Avish to say to the representative men of the South that their 
duty and iheir policy are in the same direction. Do justly by the 
emancipated men of the South. It is in vain that you tell us that 
northern men may emigrate to the South and make money. We can 
make money elsewhere. The world is large. My own State has cit- 
izens who have made homes in China, on the coast of Africa, in Mad- 
agascar, the Sandwich Islands; every continent and every sea they 
have visited, and upon every continent and upon every island they 
have made homes. It is not necessary that you give us security that 
we shall be well treated if we go South and miij make money. We want 
something better. There is something that, as patriots interested in 
the welfare of the country, we prize more; and that is justice to our 
fellow -men who are with you. Promises to treat us well are no com- 
pensation for wrong done to our brethren who cannot find homes 
elsewhere. 

But, sir, what is the ultimate and last and complete remedy for 
these wrongs ? It is in educating the people of the South, black and 
white, upon the idea of human equality. So long as men believe there 
is a difference of race and that that difference affects political rights, 
so long this question of caste and condition will arise, and so long will 
there be disorder and confusion in the State. The rising generation 
in the South is to be educated. And now I come to say what I know 
will be more disagreeable than anything I have said. 

When the children of the white iicople and the black people are 
compelled to go into tlie same schools, sit upon the same forms, accept 
the same teacliers, study the same books, become rivals in education 
and in the])ursuitsof life, you will have a community tliat will believe 
practically in human equality. Therefore it is that that provision 
which has been stricken out oi' the civil-rights bill in the other House 
is of more consequence than all the other ])rovisions of the- bill and 
than all the provisions which the ingenuity of all the lawyers in 



23 

both Houses cau frame with reference to the future peace aud pros- 
perity of the South. 

In that provision of compulsory common-school education, sup- 
ported by universal taxation, I see the dawn of a day that will surely 
come when there will be peace in the South upon the accepted ideas 
of human equality— just human equality. Hotels, circuses, theaters, 
railway cars, open their doors and gates to all comers who can pay 
for what they desire. Money will be the passport that will carry 
black as well as white into all these institutions and to the enjoy- 
ment of all these privileges; but the common school, if shut by law 
or custom against one class of people, necessarily makes distinctions 
in society. These distinctions grow and increase, and all the ills of 
which we now complain will be augmented by the increase of popu- 
lation in the South. Sir, the policy I propose is due not to the negro 
race merely; it is due to the white race ; it is due to the country. 

Thus, Mr. President, I have treated the subject upon the idea that 
those questions which apparently now concern us, which affect the 
judgment of the Senate, which disturb the peace of the country, are 
only symptoms of a disorder, evidences of an evil. That disorder or 
evil can be controlled for the time being by the power of the Govern- 
ment. I have sought in the Constitution to find the source from 
which the power cau emanate ; but the relief, the permanent relief, 
is in a system of public instruction for the South which shall know 
no distinction of race or color. 



EEMAEKS ON THE CIVIL-RIGHTS BILL. 

February 26, 1875. 

Mr. BOUTWELL. Mr. President, the remarks made by the honor- 
able Senator from Ohio [Mr. Thukman] lead me to submit some 
observations upon the meaning of the fourteenth amendment. If I 
differ in opinion from the honorable Senator, it is not strange. I do 
not partake of the view he expresses as to the change going on even 
in the Senate. He says that respect for the rights of the States has 
been gradually fading out in the minds of Senators since he has had 
a seat in this body. What inference we are to draw from that re- 
mark, as to the influence he may have had upon the Senate, I cannot 
say. I have not observed that effect, and I doubt the existence of 
the fact. Nor is there in the country a disposition to interfere with 
the rights of the States, nor is there'any change in opinion as to the 
power of States, excei)t as their power has been limited by the 
amendments that have been made to the Constitution. I feel that 
the change which has taken place is due to the respect for the Con- 
stitution in those particulars wherein the powers of the States have 
been limited, and not from a disposition to deprive any State of its 
constitutional powers. 

The thirteenth, fourteenth, and fifteenth amendments did limit 
the power of the States ; they did extend the power of the General 
Government ; and the question we are considering almost continu- 
ally is the extent to which the power of the States has been limited 
and the extent to which the power of the General Government has 
been carried by these several amendments. 

I am not dis'posed to discuss the Slaughter-house decision, as it is 
called. It will stand legally and politically for what it is worth. It 
related to a particular case. In that case and in every other like case, 
if there shall be another like case, it is law ; but it is not law beyond 



24 

the case in whicli the opinion Avas rendered, and therefore I <li,siuiss 
it as a lej^ishitor when I come to consi(h'r new propositions. 

Mr. STEWART. Tliat was by a divide<l court. 

Mr. UOUTVVELL. It was by a divided court, but nevertlu'less the 
opinion of the majority of the court is the hiw of the case, but it is not 
law beyond tlie case; it is not hiw with reference to the ri.t;hts of 
States generally, and certainly is not law for the Senate when the 
Senate is engaged in considering a question which is a dili'ereut 
question from that on which the court passed. 

In the fourteenth amendment I lind ample power for what is pro- 
posed in the bill under consideration. The fourth section of tliis bill 
does not propose, as was suggested by the Senator from Ohio, to de- 
cide the qualifications of jurors in the States. The illustration which 
he gave to the Senate was not an illustration in point. He say«, if a 
State shall jirovide by law that a person who does not understand 
the English language shall not sit as a juror, is the United States to 
come in and by legislative authority decide or declare that such per- 
son may sit as a juror ? I think no one would contend that there 
was any such power in the National Government, and certainly no 
such i)o\ver is asserted in this bill. 

The fourth section is: 

That no citizen possessing all other qualificatious which are or may be preieribed 
by law — 

That is, by the law of the State — 

shall be disqualifieil for service as grand or petit juror in any court of the United 
States, or oi any State, on account of race, color, or previous condition of servitude. 

Tliat is merely a declaration by the General Government of equality 
of rights among citizens of the several States and of each i)articular 
State in reference to service upon the juries of the State and in the 
State courts. 

Mr, THUKMAN. Will it trouble the Senator if I interrupt him ? 

Mr. BOUTWELL. Not in the least. 

Mr. THURMAN. Then I beg leave to call the Senator's attention 
to the fact that the first section of the fourteenth amendment, on 
which he relies of course to sustain the bill, has no reference what- 
soever *to "race, color, or previous condition of servitude." No such 
words are in the section. No allusion is made to that distinction. 
Therefore I asktheSenator, if there is power to say "that no citizen," 
in the language of this bill, " possessing all otiier qualifications 
which are or may be prescribed by law, shall bo disqualified for serv- 
ice as grand or petit juror of any State on account of race, color, or 
previous condition of servitude," why have you not equal power to 
strike out those words " on account of race, or color, or previous con- 
dition of servitude" and insert "on account of his ignorance of the 
English tongue?" Why can you not do it; or why can you not add 
after the word "servitude" the words "or on account of his igno- 
rance of the English tongue ; " for there is not one word in tlie first 
section of the fourteenth amendment that relates to race, or color, or 
l)revious condition of servitude. 

Mr. I50UTWELL. That is all very true. The fourth section of 
this bill provides for etpialityin certain i)articular8 where^the equal- 
ity of citizens is assailed, and not elsewhere. It is assailed or threat- 
ened in many of the States of the Unioji, upon the ground that cer- 
tain persons are of a particular race or of a jiarticular color or have 
been subject in times past to the condition of slaves. In order to 
protect those people against discriminations for these reasons, this 
provision of the bill contemplates that if they are qualified in other. 



25 

respects as the laws of the State require for other citizens, they shall 
not be escludefl from the jury-box for these reasons; and, although 
there is not in the first section of the fourteenth article of amend- 
ment any reference to these conditions, there nevertheless is a decla- 
ration which covers these conditions, and might cover and in fact does 
cover many other conditions: 

All persons born or naturalized in the United States, and subject to the jurisdic- 
tion thereof, are citizens of the United States and of the State wherein they reside. 

What does that phrase mean ? It means first and chiefly and pre- 
eminent, as the law of the land, that " all persons bom or natm^al- 
ized in the United States, and subject to the jurisdiction thereof, are 
citizens of the United States." That is the first great primal truth of 
the fourteenth amendment ; and what is the first privilege, right, 
immunity under that declaration? It is that they are citizens of the 
several States " wherein they reside." Therefore the leading doctrine 
of that provision of the Constitution is that all the persons described 
in it are citizens of the United States, and by virtue of that citizen- 
ship they are citizens of the State wherein they reside. That is the 
first immunity. The chief privilege, the great right established by 
the fourteenth amendment to the Constitution is that citizens of the 
IJnited States are citizens of the State wherein they reside. That is 
the immunity, that is the privilege, that is the right. Now, then, 
what follows ? 

No State shall make or enforce any law which shall abridge the privileges or 
immnnities of citizens of the United States. 

Not " of citizens of the States," but " of citizens of the United 
States." And what is the first ]iri\'llege of citizens of the United 
States? That they are citizens of the State wherein they reside. 
And what is the chief right of the citizen of a State ? That he is the 
equal before the law of every other citizen. By the fourteenth amend- 
ment the people of the United States, through their constituted au- 
thorities, have grasped the question of securing to citizens of the 
United States their rights as citizens of the several States ; and the 
first right is the right of equality before the law. Therefore, while 
we cannot go into the States and say what the rights of citizens of 
the State in the State shall be, yet whenever there is a law in a State 
or a provision of its constitution which secures to citizens generally 
their rights and discriminates agauist other citizens, that discrimina- 
tion is not only against citizens as citizens of the State, but against 
those citizens as citizens of the United States, and in oui' power under 
the fourteenth amendment to protect them as citizens of the United 
States, we pass the boundaries of the several States by authority of 
the Constitution and secure to our citizens, the citizens of the United 
States, their rights under the laws of the respective States. 

Mr. THURMAN. Now let me ask the Senator a question right 
there. Where does he find any foundation for the position that either 
citizenship of the United States or citizenship of a State gives a pei'- 
son a right to sit upon a jury? 

Mr. BOUTWELL. I do not find it at all. 

Mr. THURMAN. No ; I guess not. 

Mr. BOUTWELL. I do not need to look for it. As a citizen of the 
United States and as a part of the law-making power of the United 
States I may look beyond State lines and within the jurisdiction of a 
State, and see what the rights and privileges and immunities of citi- 
zens of the State generally are under the laws and constitution of 
the State. Then I say if there be a citizen of the United States 

3 B 



20 

"witliin that jurisdiction who is deprived in any particular of his 
rights as a citizen of the State, under the laws of the State, I cau, 
under the Constitution of the United States and as a part of the law- 
niaking power, invoke the authority of the United States, legislative, 
juditriiil, and exec^jve, for the protection of that citizen in his just 
rights as a citizen of the State. Tlie Government of the United 
States can take the humblest citizen in the State of Ohio who by the 
constitution or the laws of that State nuiy be dejjrived of any right, 
privilege, or innuunity that is conceded to the citizens of that State 
generally, and lift him to the dignity of equality as a citizen of that 
State ; and all that is claimed under the fourth section of this bill is 
that you shall not, in the State of Ohio or iii Massachusetts or in 
Maryland, say that a man shall not sit upon a jury because he is a 
black man or because he is of the German race or because he has 
been held in slavery. And if for other reasons discriminations were 
made 1)y the laws of any of these States, we might under the four- 
teenth amendment protect men from such discriminations. 

Therefore I do not yield to the Senator from Ohio in my respect 
for the constitution or the sovereign jiower of the States. What 
they have, that I will assert. What they are entitled to, that I will 
defentl. What by the Constitution of the United States they can in- 
voke, that I will help to protect ; but I will at the same time mvoke 
the power of the Government of the United States, under the Con- 
stitution of the United States, to protect the citizens of the United 
States in the several States in their equal rights under the laws and 
constitutions of the States wherein they may reside. 



i'c- S 72 



